Yesterday the pro-life movement relearned the bitter lesson of 46 long years of judicial battles to roll back or limit the judicially concocted right to kill a child in the womb: Put not your faith in judges, for they shall disappoint you.
In a 5–4 decision, Justice John Roberts sided with the court’s progressive wing to grant an emergency stay blocking enforcement of Louisiana’s admitting-privileges law. As I explained earlier this week, the state requires that doctors performing abortions “have active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services.”
The Louisiana law appeared to violate a recent Supreme Court precedent called Whole Women’s Health v. Hellerstedt, which struck down a nearly identical Texas law. The Fifth Circuit Court of Appeals, however, surprisingly upheld the Louisiana law, holding that there were enough factual differences between Louisiana and Texas to render the Louisiana law less burdensome on abortion rights.
The appeals court’s ruling set up a showdown at a very different Supreme Court than the one that decided Whole Women’s Health in 2016. That case was decided 5–3. Justice Kennedy joined the progressive wing, Scalia had died, and Justices Roberts, Thomas, and Alito dissented. All other things being equal, since Kennedy retired, and Justices Gorsuch and Kavanaugh are both more originalist than Kennedy, one would think the 5–3 abortion-rights majority would transition to a narrow 5–4 edge for greater deference to state abortion regulation.
But no, not yesterday, and yesterday’s ruling was an ominous moment for those who’ve voted, worked, and fought for so very long to end the judicial philosophy that brought us one of the most monstrous court precedents in American history. When Justice Roberts joined the court’s progressives to grant the emergency stay and temporarily block Louisiana’s law while the case is pending before the Supreme Court, he did more than benignly push pause on the enforcement of the Louisiana law. Emergency stays are granted only when — among other factors — “there exists a significant possibility of reversal of the lower court’s decision.”
This means that if and when the Court hears the case on the merits, Justice Roberts may well switch sides. He may well vote to either uphold or expand the Whole Women’s Health precedent. While it’s still possible that Justice Roberts will ultimately vote to affirm the Louisiana law when the case is fully briefed and argued, as a matter of law he sent a very negative signal that, despite his initial opposition to Whole Women’s Health, he may well allow his respect for precedent override his initial constitutional objections.
And that’s not all the bad news. Multiple pro-life activists were initially pleased that not only did Justice Kavanaugh join Justices Gorsuch, Thomas, and Alito in voting against the stay, but Kavanaugh actually penned a short dissent.
But if you read the dissent, it’s on the most narrow possible grounds. Essentially, he argues that there isn’t yet any evidence that the Louisiana law will have any immediate effect on abortion access. The state was implementing a 45-day transition period that could allow more doctors to obtain admitting privileges, and if they could not, then the doctors could file an “as-applied” complaint against the law, rather than a pre-enforcement challenge. Indeed, the entire dissent is painstakingly (and painfully) deferential to Whole Women’s Health and the Casey “undue burden” standard more broadly.
To be sure, nothing about this Kavanaugh dissent represents a definitive declaration of his view of either key abortion precedent. In a different case (or even when this case comes back before the Court), Justice Kavanaugh could reach a different — and better — conclusion. But keep in mind that he did not have to write that dissent. He could have joined the other three dissenters in silence. The fact that he chose to speak — and to speak in such careful, limited language — strikes me as meaningful.
Throughout the Kavanaugh hearings, the Left raised the possibility that the new Supreme Court would not just uphold limits to abortion rights, but could actually reverse Roe and Casey and return abortion law entirely to the states. Most pro-life activists didn’t dare dream that big. They’d been disappointed too many times before. But there was substantial optimism that — at the very least — the Court would narrowly construe Casey’s “undue burden” standard and broadly support state abortion regulations.
That’s still possible, but thanks to a Roberts ruling and a cautious Kavanaugh dissent, grounds for pro-life optimism are fading yet again. A Supreme Court that has has made great strides in protecting individual liberty struggles to allow states to recognize and protect the most fundamental freedom of all, the right to live.